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Moment of Conception

On April 17, 2007, the Supreme Court upheld a national ban on an abortion procedure known as intact dilation and extraction. Anti-abortion groups, which successfully branded it “partial-birth abortion,” had spent 15 years and more than a quarter-billion dollars getting Congress to pass the ban in 2003. The Court’s 2007 ruling was the movement’s greatest legal victory in decades, a significant step toward overturning Roe v. Wade. But not all abortion opponents were celebrating.

Among the unenthused was Brian Rohrbough, president of Colorado Right to Life. Rohrbough belongs to an absolutist wing of the movement that believes in “personhood”—the idea that fetuses are people from the moment of conception. After losing his son in the Columbine High School shootings in 1999, Rohrbough concluded that the legalized “killing of innocent children in the womb” had set America on a path of moral decline that allowed such violence to occur. For Rohrbough, the ban on partial-birth abortion was part of a failed strategy of whittling away at Roe. Worse, it was unconscion-able, because going after one abortion procedure implied that others were acceptable.

With several like-minded activists, Rohrbough wrote a public letter to James Dobson, head of the Colorado-based evangelical powerhouse Focus on the Family, which had pushed the ban. The letter ran in newspapers in Colorado and around the country. “America has killed twenty million children during this long distraction, all in pursuit of a ban that from the beginning Never Had The Authority To Prevent Even A Single Abortion. ... You joined together in calling evil good,” Rohrbough wrote. “Please stop foisting onto the church the falsehood that this gruesome ruling will ‘protect children.’ This decision, to use your word, is more ‘Naziesque’ than the PBA [partial-birth abortion] it regulates.”

Retaliation was swift. National Right to Life, whose support of the Court’s ruling was also denounced in the letter, removed its Colorado chapter from the national organization. Mainstream anti-abortion groups stuck to their strategy of gradually weakening Roe until it could ultimately be repealed. But the rift over partial-birth abortion was evidence of a growing divide within the movement, and it energized personhood advocates to coalesce around a new strategy. “Partial-birth abortion was the perfect picture of the failure of the pro-life movement,” says Bob Enyart, a spokesperson for the Colorado-based personhood group American Right to Life, which was created shortly after the Supreme Court decision as a rival to National Right to Life. “Personhood was the alternative.”

Four and a half years later, the personhood movement is poised for its first major victory. On November 8 (after this magazine goes to press), Mississippi voters are expected to approve Amendment 26. The measure would establish the personhood of the fetus from the beginning of biological life and outlaw all abortions without exception.

Even for many anti-abortion crusaders, this is a stunning development. The movement had long shied away from fetal personhood, fearing that extreme positions on rape, incest, and life-of-mother exceptions could end up reaffirming Roe rather than overturning it. Equally worrying are the sweeping implications of personhood. It would outlaw the morning-after pill, as well as intrauterine devices (IUDs). It could make the birth-control pill illegal. Legal liability for obstetricians and gynecologists would be “through the roof,” says Emilie Ailts, executive director of NARAL Pro-Choice America’s Colorado chapter. Other legal ramifications are vast: By NARAL’s estimate, personhood in Colorado would alter as many as 20,000 laws. Women who have miscarriages could be prosecuted for homicide if anyone suspects reckless behavior or intentional harm to the fetus.

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“At the time that the personhood movement started, it was a really radical, ultra-right-wing, anti-choice effort that even the normal anti-abortion groups did not support,” says Kyle Mantyla, who reports for the blog Right Wing Watch. “As a group that monitors the religious right, we were all like, ‘Well, we really don’t have to pay attention to that because even they say this is a crazy, nonsensical idea.’” But not anymore. “Over the course of three or four years,” he says, “this has gone from something that nobody would touch to something that everybody on the religious right supports, and how that happened, I actually have no idea.”

The answer is a combination of ideological clarity and impeccable timing. For those frustrated with the pace of Roe repeal efforts, personhood provides a simple solution: In fewer than 40 words, Mississippi’s Amendment 26 jumps right past all the incremental steps anti-abortion activists have pursued, from banning intact dilation and extraction to mandating sonograms for women seeking abortions. This fits neatly into the conservative Catholic and Protestant worldview, heavily influenced in recent years by “Christian reconstructionism,” a movement that urges Christians to inscribe fundamentalist beliefs into civil law. According to Frederick Clarkson, who blogs about the religious right at Talk2-Action, in this theological perspective, “the Bible describes a clear beginning and an end” to life, and “we are not supposed to interfere with God’s plan for procreation.”

The personhood movement has its roots in the extreme wing of the anti-abortion movement. Both Enyart and Keith Mason, founder of Personhood USA, are alumni of Operation Rescue, which became notorious in the 1980s and early 1990s for raucous abortion-clinic demonstrations and violent rhetoric toward abortion providers. Mason drove a “truth truck,” a van plastered with pictures of dead fetuses, spreading the “abortion is murder” message as he traveled across the country. In 1994 when Congress made it a crime to block entrances to abortion clinics—one of Operation Rescue’s favorite strategies—many activists changed their approach. Personhood eventually became the avenue for them to do what they were doing in the 1990s, only they traded the truth truck for a suit and tie.

In 2007, Georgia became the first state to consider a personhood measure. It failed in the legislature but helped to spark the movement. After a summit in Georgia in 2008, Mason returned to his hotel room and conceived of a national organization, Personhood USA, which he founded the same year in Arvada, Colorado. Meanwhile, thanks to the work of activists like Rohrbough—and to the relatively small number of signatures required to get a measure on the ballot in Colorado—the nation’s first statewide measure on personhood, Amendment 48, went before voters in 2008. Rohrbough co-founded American Right to Life as well as a companion 527 group to raise and spend tax-exempt money on political ads and voter mobilization.

With the Colorado campaign, pro-choice groups started taking the personhood movement seriously. “When we saw the diligence and the dedication that motivated them to pursue this,” Ailts says, “people were sobered a bit.” Led by NARAL Colorado, several pro-choice organizations formed an executive committee to strategize a defense. NARAL raised and spent more than $1 million, a tenth of its budget that year, to defeat Amendment 48.

As expected, National Right to Life wanted nothing to do with the personhood campaign. Neither did the Colorado Catholic Conference. Republican candidates ran away from the issue. The amendment was overwhelmingly defeated, 73 percent to 27 percent. Undeterred, personhood activists got another measure on the ballot in 2010. The campaign was more polished, and more Republican candidates came on board. Still, the amendment lost again, 72 percent to 28 percent. Today, Colorado activists are working on a third try for 2012. But the momentum has shifted to Mississippi. This time around, everything is different.

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Pro-life groups that once opposed fetal personhood, including the powerful American Family Association and the political arm of Dobson’s Focus on the Family, the Family Research Council, are now promoting it. “I foresee this as being accepted eventually by all of the pro-life leadership nationally,” says Daniel Becker, who wrote the movement’s manifesto, Personhood: A Pragmatic Guide to Prolife Victory in the 21st Century and the Return to First Principles in Politics. Republican presidential candidates were asked about personhood at a Republican forum in South Carolina this fall; Michele Bachmann, Herman Cain, and Newt Gingrich all endorsed it. On Fox News in October, Mitt Romney said that he would support personhood legislation.

“We believe that the only way to achieve that federal-level constitutional amendment is to start at the bottom and work grassroots, state by state, until we have 35 states,” says Becker, who serves on the board of Personhood USA and is president of Georgia Right to Life. After Mississippi, the movement has set its sights on passing ballot initiatives over the next two years in five more states: Florida, South Dakota, Ohio, Nevada, and Montana. Opposition from powerful anti-abortion groups has dampened the personhood movement in the past, Becker says. “But after Mississippi, I think all bets are off.”

The personhood push comes at a moment when the anti-abortion movement and American conservatives in general are increasingly radical. In October, the U.S. House of Representatives passed a bill that would let hospitals deny a woman an abortion even if it were needed to save her life. Since Tea Party candidates swept into state capitals last November, states have passed a record number of bills that restrict access to abortion. The differences that split the anti-abortion movement for years—not only debates over tactics but over exceptions for incest, rape, and the life of the mother—have faded. If Amendment 26 passes in Mississippi, it will undoubtedly go to court, where the movement is preparing a defense based on the Tea Party’s favorite amendment: the tenth.

But the Tenth Amendment, which grants authority over some issues to the states, would not help once personhood reached the Supreme Court. So what is the movement’s legal strategy for overturning Roe? “Look at Dred Scott,” Becker says, referring to the 1857 Supreme Court decision declaring that blacks had no citizenship rights. “It was never overturned or reversed as a legal decision. There was an amendment that was passed at a federal level that rendered it null and void, and that’s what we’re looking at doing ultimately. But until then, even if the Supreme Court rules against personhood as they did against Dred Scott himself, then that will not stop the movement. It won’t slow things down, it won’t dampen our enthusiasm, and hopefully we won’t have to fight a civil war.”